Column: States that actually murder by the death penalty

The late Justice William Brennan used to tell me, “The evolving human standards of human decency will finally lead to the abolition of the death penalty in this country.”

He’d hoped that a clear understanding of the Constitution’s due process protections for every citizen would reveal how the death penalty practices of certain states violate the Constitution.

As another Supreme Court justice, Harry Blackmun, chillingly wrote in a dissenting opinion in Callins v. Collins, “From this day forward, I shall no longer tinker with the machinery of death.”

Blackmun thereby decided the death penalty was fundamentally unconstitutional.

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While some states have ended the death penalty, it still persists in others, and capital punishment remains a federal death sentence.

Indeed, a shocking (and, to me, sickening) lead editorial in The New York Times last week revealed the means that certain states use to continue creating death penalty corpses. These states viciously violate not only the Constitution, but also the most basic American rules of law and our most profound national values.

How many of us know what those are?

Deserving at the very least a Pulitzer, this editorial explained how certain remaining death penalty states “hide the means by which they kill people” (“Secrecy Behind Executions,” The New York Times, Jan. 30).

How did this unbounded cruel and unusual punishment come about?

According to the editorial: “Because many drug manufacturers now refuse to supply drugs for use in executions, states are scrambling to replenish their stocks. This often means turning to compounding pharmacies, which exist in a largely unregulated world ...

“There have been multiple reports of previously untested drug combinations leading to botched executions, which is a polite way of saying the condemned person suffered greatly while being put to death.”

Do these states not remember the Eighth Amendment’s prohibition of “cruel and unusual punishment”?

I have no idea how many Americans, if any, would react by saying, “So what? They were convicted, weren’t they? What’s this fuss about? We’re a lot better off without them.”

But some of you may be ashamed.

In any case, most of the involved juries, prosecutors, judges and members of state executive branches have shown no public concern. Nor have investigative reporters located in these areas shown enough concern. There have been a few exceptions.

But I will continue to follow this story closely to see if there is any reaction to these unpunished atrocities from the media, legislatures (including Congress), and political candidates throughout this land.

Meanwhile, a few judges have remembered the Constitution, with one in Georgia issuing “a last-minute stay of execution to one inmate, reasoning that the state’s secrecy law ‘makes it impossible’ to show that the drug protocol violates the Eighth Amendment.”

So how about ruling that Georgia’s secrecy law is unconstitutional, because it extinguishes inmates by unknown and possibly criminal means?

And shouldn’t certain punishments apply to those high officials who authorized the state secrecy law’s use?

Let’s look at the actual case of the late Herbert Smulls, who was executed in Bonne Terre, Mo., on Wednesday, Jan. 29 “for the 1991 murder of a jewelry store owner.” His attorney had tried desperately to stay Smulls’ forthcoming execution by unknown means, citing his Eighth Amendment rights.

But a federal appeals court in Missouri ruled against Smulls’ claim that he was “entitled to basic information about the drugs that would be used to put him to death.”

As Smulls involuntarily departed, I expect he knew by then he was being deprived of his Fourteenth Amendment guarantee that no American citizen shall be “deprived of life, liberty or property without due process of law,” nor without “the equal protection of the laws.”

How did the Eighth Circuit Court of Appeals in Missouri thereby dispose of Herbert Smulls’ Fourteenth Amendment rights?

The New York Times Editorial tells us that the court “ruled that Mr. Smulls had no constitutional claim against Missouri’s practice because he had not demonstrated that ‘the risk of severe pain’ from the state’s intended drug protocol would be substantially greater than a readily available alternative.”

The judges on this highest court had seen and rejected the dissenting opinion, which “’places an absurd burden on death row inmates,’ who must identify ‘a readily available alternative method for their own executions,’ even though the state won’t let them see the method it plans to use.”

Reading that brought me back to my last conversation with Justice Brennan soon after illness led him to retire from the Supreme Court.

“Listen, pal,” he said (he often called friends “pal”), “you have to remember liberty is a fragile thing.”

That’s why he spent his life protecting it.

The Times’ editorial climaxed, with which Brennan would have agreed: “In the 21st century, the United States has no business putting people to death by any means. Public support for capital punishment has reached a 40-year low, and virtually all other Western societies have rejected it. It will end here, too, but not until this despicable practice is dragged out into the open for all to see.”

But what about the Supreme Court? Weren’t there appeals to stay Herbert Smulls’ execution? Yes, but the last appeal was not denied by the high court until four minutes after he had been declared officially dead. So he really had no hearing on this final appeal from the Supreme Court.

To be continued.

About the Author

Nat Hentoff is a nationally renowned authority on the First Amendment, the Bill of Rights and modern jazz. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.